The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5178

February 25, 1977

SHERIFFS:

Emergency assistance

COUNTY BOARD OF COMMISSIONERS:

Authority to pay emergency personnel called upon by a sheriff

PEACE OFFICERS:

Authority outside jurisdiction

In order for a sheriff to call upon persons for assistance in times of emergency, the sheriff or the prosecuting attorney of the county must obtain an order from the circuit court stating the need for the personnel and the days they will be requested to serve.

To provide payment for services rendered by emergency personnel, it is necessary for the county board of commissioners to adopt a resolution that states the amount of compensation to be paid by the county for the services.

Where private citizens are called upon to serve as extra sheriff deputies and are paid for these services, the county must withhold social security and income taxes from the amount of compensation paid to them, but need not withhold amounts paid as reimbursement for mileage, meals, lodging, or other expenses.

Where off-duty sheriff deputies are called upon to work additional hours in times of emergency, compensation for such service is to be made on the regular payroll and is subject to deduction for social security, income taxes and pensions.

A sheriff may call upon a peace officer of a county, city, or village for cooperation. In such cases the employer of the peace officer is responsible for payment of the persons called upon to serve as extra deputies.

William F. Hanna

Prosecuting Attorney

Oceana County

Hart, Michigan 49420

You have asked for my opinion concerning the procedure for payment of persons who render emergency assistance to a sheriff pursuant to 1919 PA 237, Sec. 6, as added by 1967 PA 40; MCLA 45.406; MSA 5.916. Your letter of request listed three categories of persons who are called upon by the sheriff to provide him with assistance in emergencies. These categories are:

(a) private citizens;

(b) off-duty deputies called in during the period of the emergency;

(c) village and city police and marshals.

1919 PA 237, Sec. 6, supra, provides:

'In times of emergency the sheriff, upon order of the circuit court for the county, made upon the petition of the sheriff or prosecuting attorney of the county, showing the necessity therefor, may appoint for such day or days as may be required, 1 or more additional deputies, who, for services actually rendered, shall receive an amount as determined by the board of supervisors. Upon completion of his service each deputy so appointed shall make and file with the county treasurer a full and detailed report, including his actual expense account, duly verified, of service rendered and official acts performed during the period of service, of all moneys received in fees, mileage, perquisites, and emoluments on account of such appointment, and at the same time shall pay over to the county treasurer all moneys so received, which shall thereupon become the money of the county. The sheriff may also appoint deputy sheriffs to protect private interests, who shall receive no compensation from the county for services on account of such appointment. Said deputies so appointed may be required by the board of supervisors to file a detailed statement with the county clerk of all their official acts.'

It is clear from a reading of the statute that, in order for a sheriff to call upon persons for assistance, it is necessary for him to petition the circuit court for an order. Such a petition may be presented either by the sheriff or the prosecuting attorney and the petition must state the need for the emergency personnel and the day or days during which they will be required to serve. The order of the court need not state the names of the individuals, but only the number of additional deputies required to meet the emergency. The issuance of the order by the circuit judge, however, does not provide for payment for the services rendered. In order for these persons to receive payment, it is necessary for the county board of commissioners to adopt a resolution which states the amount of compensation to be received. Unless the circuit court has issued the order authorizing their retention and the county board of commissioners has adopted a resolution providing for payment, the county treasurer has no authority to pay them for the services rendered.

Your letter of request indicates your particular concern with whether the extra deputies are to be paid a gross sum or whether it is necessary to withhold social security and income taxes as required by state and federal law.

In my opinion the private citizens called upon to serve as extra deputies are employees of the county and it is therefore necessary to withhold social security and income taxes from the amount of compensation paid to them. It is not necessary, however, to withhold sums paid to them as reimbursement for mileage, meals, lodging, or other expenses incurred as a result of being called upon to provide service.

As to off-duty deputies who are called upon to work additional hours, payments to them may be made on the regular payroll subject to deductions for social security, pensions and withholding taxes.

As to village and city police and marshals, I call your attention to 1927 PA 175, as added by 1939 PA 100; MCLA 764.2a; MSA 28.861(1), which provides that a peace officer of any county, city or village may exercise powers outside his own jurisdiction when enforcing laws of the state in conjunction with a peace officer of another county, city or village. This provision, it will be noted, provides for cooperation between peace officers of different jurisdictions and does not make the cooperating peace officer subject to the supervision of the sheriff. In such cases, therefore, the county, city or village that is the employer of the cooperating peace officer is responsible for payment of the usual compensation. If 1927 PA 175, Sec. 2a, supra, is not invoked, the persons called upon to serve as extra deputies who are also peace officers of another jurisdiction are to be treated the same as private citizens and are to be compensated in accordance with the same procedures.

Frank J. Kelley

Attorney General